Wednesday, March 02, 2005

Roper v. Simmons

In his dissent yesterday in Roper v. Simmons, Scalia makes some good points about the Court's highly selective use of international law (purportedly to interpret the American constitution):

The Court begins by noting that “Article 37 of the United Nations Convention on the Rights of the Child, [1577 U. N. T. S. 3, 28 I. L. M. 1448, 1468—1470, entered into force Sept. 2, 1990], which every country in the world has ratified save for the United States and Somalia, contains an express prohibition on capital punishment for crimes committed by juveniles under 18.” * * *

Unless the Court has added to its arsenal the power to join and ratify treaties on behalf of the United States, I cannot see how this evidence favors, rather than refutes, its position.

* * *

It is also worth noting that, in addition to barring the execution of under-18 offenders, the United Nations Convention on the Rights of the Child prohibits punishing them with life in prison without the possibility of release. If we are truly going to get in line with the international community, then the Court’s reassurance that the death penalty is really not needed, since “the punishment of life imprisonment without the possibility of parole is itself a severe sanction,” ante, at 18, gives little comfort.

* * *

More fundamentally, however, the basic premise of the Court’s argument–that American law should conform to the laws of the rest of the world–ought to be rejected out of hand. In fact the Court itself does not believe it. In many significant respects the laws of most other countries differ from our law – including not only such explicit provisions of our Constitution as the right to jury trial and grand jury indictment, but even many interpretations of the Constitution prescribed by this Court itself. The Court-pronounced exclusionary rule, for example, is distinctively American. . . . Since then a categorical exclusionary rule has been “universally rejected” by other countries, including those with rules prohibiting illegal searches and police misconduct, despite the fact that none of these countries “appears to have any alternative form of discipline for police that is effective in preventing search violations.” * * *

The Court has been oblivious to the views of other countries when deciding how to interpret our Constitution’s requirement that “Congress shall make no law respecting an establishment of religion . . . .” Amdt. 1. Most other countries – including those committed to religious neutrality – do not insist on the degree of separation between church and state that this Court requires. For example, whereas “we have recognized special Establishment Clause dangers where the government makes direct money payments to sectarian institutions,” . . . , countries such as the Netherlands, Germany, and Australia allow direct government funding of religious schools on the ground that “the state can only be truly neutral between secular and religious perspectives if it does not dominate the provision of so key a service as education, and makes it possible for people to exercise their right of religious expression within the context of public funding.” . . . England permits the teaching of religion in state schools. . . . Even in France, which is considered “America’s only rival in strictness of church-state separation,” “[t]he practice of contracting for educational services provided by Catholic schools is very widespread.” . . .

* * *

The Court’s special reliance on the laws of the United Kingdom is perhaps the most indefensible part of its opinion. It is of course true that we share a common history with the United Kingdom, and that we often consult English sources when asked to discern the meaning of a constitutional text written against the backdrop of 18th-century English law and legal thought. * * *

It is beyond comprehension why we should look, for that purpose, to a country that has developed, in the centuries since the Revolutionary War–and with increasing speed since the United Kingdom’s recent submission to the jurisprudence of European courts dominated by continental jurists – a legal, political, and social culture quite different from our own. If we took the Court’s directive seriously, we would also consider relaxing our double jeopardy prohibition, since the British Law Commission recently published a report that would significantly extend the rights of the prosecution to appeal cases where an acquittal was the result of a judge’s ruling that was legally incorrect. * * *We would also curtail our right to jury trial in criminal cases since, despite the jury system’s deep roots in our shared common law, England now permits all but the most serious offenders to be tried by magistrates without a jury.

The Court should either profess its willingness to reconsider all these matters in light of the views of foreigners, or else it should cease putting forth foreigners’ views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry.

So the Court has taken into account the European distaste for using the death penalty on convicted brutal murderers. But, after all, Europeans are not uniformly opposed to all forms of killing. I wonder what the Court might someday make of the fact that the Netherlands sometimes allows terminally ill children to be killed, potentially up to the age of 12? (Perhaps these beliefs can be reconciled: If a terminally ill child manages to commit a brutal murder at age 11, then his or her life must be preserved as long as possible.)

10 Comments:

I agree that the decision is flawed, but isn't it the case that in deciding what is "cruel and unusual punishment" the degree of subjectivity is necessarily greater than in, say, the right to a trial by jury? I have no doubt that Kennedy is cherry-picking here, but I'm not sure the analogies Scalia draws are as conclusive as he makes them sound.

Isn't there a decent argument that the Founders' use of the word "unusual" expressly directs the courts to look to international pratices to determine what is constitutional and what is not? How did one determine what was an "unusual" punishment back in 1789 if not by looking at what the Europeans were doing?

True, the word "unusual" implies some reference to the practices of people somewhere other than the jurisdiction whose punishment is being challenged. But that could just as easily have meant "look at what the other 12 colonies are doing," as opposed to "look at the rest of the world."

Would Kennedy (or any of the majority) accept the logical corollary? I.e., a punishment is not "unusual" if enough of the world imposes it. Wouldn't that mean that cutting off someone's hand for stealing would not be "unusual" if most of the world imposed sharia law?

BUCK! Agreed (I think) on the text: the language is ambiguous on this particular point. And agreed (I think) on the cynicism: I doubt that the Court would be willing to hold that a previously unconstitutional punishment had become un-unusual b/c the rest of the world had adopted it, just as I doubt that the Court would be willing to do the same b/c every state in the Union enacted laws reauthorizing a particular type of punishment. But I think this really just highlights the ultimate irrelevance of the Court's reference to international practice, or state practice for that matter, in Eighth Amendment cases. Though the Court pays lip service to the word "unusual" (and engages in what Scalia calls "fudges" with respect to whether a punishment has become unusual), the word is effectively being read out of the amendment; all that really matters is the Justices' feelings about whether a particular type of punishment is "cruel." If I'm right, of course, this is a bad thing for constitutional law. But maybe in the end it won't be such a bad thing as a matter of policy; I've become more than just a little uncomfortable with the notion that states can effectively force their sister states to change their laws absent a constitutional amendment, something that the jurisprudence of "unusual"ness allows them to do.

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